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2017 DIGILAW 645 (UTT)

Ramesh Chandra Verma v. State of Uttarakhand

2017-12-08

K.M.JOSEPH, V.K.BIST

body2017
JUDGMENT : K.M. JOSEPH, J. 1. Petitioner has approached this Court seeking the following reliefs: “(i) issue a writ, order or direction in the nature of certiorari quashing the order dated 10-08-2017 (annexure no. 12 to the writ petition) and order dated 16-09-2014 (annexure no. 7 to the writ petition) passed by respondent no. 2 (ii) issue a writ, order or direction in the nature of mandamus directing the respondent no. 1 and 2 to give appointment to the petitioner on the post of Homeopathic Medical Officer (Ayush and Ayush Education Section, Uttarakhand).” 2. Briefly put, the case of the petitioner is as follows: An advertisement was issued on 08.03.2013 by the respondent no. 2-Uttarakhand Public Service Commission (hereinafter referred to as “the Commission”) in respect of 22 posts of Homeopathic Medical Officer for reserved category, amongst which 9 were reserved for Other Backward Classes. Petitioner is a candidate belonging to Other Backward Class having requisite qualifications. At the time of applying for the aforesaid posts, petitioner was neither having the caste certificate nor having the permanent resident certificate. Petitioner, therefore, applied for the same by giving representation to the Tehsildar Sitarganj, prior to the last date of interview i.e. on 19.08.2013; but, when no decision was taken, petitioner approached this Court by filing Writ Petition (M/S) No. 1951 of 2013. An interim order was passed by the learned Single Judge in the following manner: “Heard learned counsel for the parties. Present petition has been filed by the petitioner for direction to the respondents to issue permanent resident/domicile certificate as well as caste certificate to the petitioner. From the perusal of record, it transpires that an application for issuance of permanent resident certificate was filed by the petitioner before S.D.M., Sitarganj on 11.03.2013 and application for issuance of caste certificate was filed on 22.07.2013 before the Tehsildar, Sitarganj but Tehsildar, Sitarganj has not taken any decision on the said application. It is seen that application moved by the candidates for issuance of permanent resident certificate and also for issuance of caste certificate is not dealt with by the Tehsildar, Sitarganj in time. Such application is kept pending for a long period which is not only unnecessary harassment of the candidates but also in some cases, the candidates who do not come before the Court lose their legitimate right of admission in the college. Such application is kept pending for a long period which is not only unnecessary harassment of the candidates but also in some cases, the candidates who do not come before the Court lose their legitimate right of admission in the college. In other cases also, I have issued direction to District Magistrate, Udham Singh Nagar for issuing necessary instructions to all the Tehsildars for deciding the application for issuance of permanent resident certificate as well as caste certificate, expeditiously within one month. In this case also, I find that application was moved in the month of March, 2013 but no decision has been taken by the Tehsildar, Sitarganj. The District Magistrate, Udham Singh Nagar once again is directed to issue necessary direction to all the Tehsildars to take decision on such applications very-very expeditiously. Considering the fact that petitioner applied for permanent resident certificate on 11.03.2013 and caste certificate on 22.07.2013, I direct the Tehsildar, Sitarganj to take decision on the application of the petitioner for issuance of permanent resident certificate and caste certificate within a period of three days from the date of production of certified copy of the order. Also considering the fact that 19.08.2013 is the date fixed for interview, I direct the Uttarakhand Public Service Commission to permit the petitioner to appear in interview, provisionally. Petitioner is directed to communicate the Secretary, Uttarakhand Public Service Commission, as soon as his application for issuance of permanent resident certificate as well as caste certificate, are decided. In case caste certificate as well as permanent resident certificate is not granted to the petitioner, candidature of the petitioner shall not be considered. Petitioner is also directed to inform the Court on 23.08.2013 about the decision taken by the Tehsildar, Sitarganj. List this petition on 23.08.2013. Interim relief application no.8620 of 2013 stands disposed of.” 3. The Tehsildar decided the pending representation of the petitioner by order dated 19.08.2013, rejecting the claim based on Government Order dated 20.11.2002. The petitioner filed Writ Petition (M/S) No. 2351 of 2013 challenging the order dated 19.08.2013. It is stated that the said petition was withdrawn by the counsel for the petitioner for the reason best known to him; but, when it came to the knowledge of the petitioner, petitioner prompted his counsel to adopt further recourse. The petitioner filed Writ Petition (M/S) No. 2351 of 2013 challenging the order dated 19.08.2013. It is stated that the said petition was withdrawn by the counsel for the petitioner for the reason best known to him; but, when it came to the knowledge of the petitioner, petitioner prompted his counsel to adopt further recourse. The order passed by the learned Single Judge in Writ Petition (M/S) No. 2351 of 2013 reads as follows: “For the reasons stated in the application, delay in filing the rejoinder affidavit is condoned. Rejoinder affidavit is taken on record. CLMA No. 2134 of 2014 stands disposed of accordingly. Mr. M.K. Ray, learned counsel for the petitioner, having argued for some time, seeks permission to withdraw this petition. Petition is permitted to be withdrawn. CLMA Nos. 13192 of 2013 and CLMA NO. 10564 of 2013 also disposed of accordingly.” 4. Petitioner made a representation to the respondent no. 2-Commission to give him some more time to produce caste certificate as well as permanent resident certificate and respondent no. 2, considering his representation, extended the time to produce the relevant documents upto 22.07.2014. Petitioner, when felt that nothing is going to happen upto 22.07.2014, filed one petition bearing Writ Petition (S/B) No. 245 of 2014 for direction to the Commission to give more time to produce the documents. An order came to be passed by the Division Bench of this Court extending the time till 30.07.2014. The said judgment, being most crucial, we extract the same, as follows: “Mr. Tanuj Semwal, Advocate for the petitioner. Mr. B.D. Kandpal, Advocate for the respondent. Heard learned counsel for the parties. Earlier the petitioner filed writ petition no.1951 (M/S) of 2013 in which direction was issued to the Tehsildar, Sitarganj to take decision on the application of the petitioner for issuance of caste certificate. The Public Service Commission, Uttarakhand was also directed to permit the petitioner to appear, provisionally, in interview. In pursuance of the said order, the petitioner was permitted to appear in interview for the post of Medical Officer (Homeopathy). It is not known what action was taken on the application of the petitioner for caste certificate. The Public Service Commission repeatedly asked the petitioner to supply the copy of the caste certificate and lastly by order dated 03.07.2014 petitioner was asked to produce caste certificate before 22.07.2014, failing which his provisional selection shall be cancelled. It is not known what action was taken on the application of the petitioner for caste certificate. The Public Service Commission repeatedly asked the petitioner to supply the copy of the caste certificate and lastly by order dated 03.07.2014 petitioner was asked to produce caste certificate before 22.07.2014, failing which his provisional selection shall be cancelled. Now the petitioner has approached this Court for direction to the respondent for giving some more time to the petitioner for submitting his caste certificate. Prayer made by the petitioner is strongly opposed by the counsel for the Public Service Commission. Learned counsel for the Commission submits that, in fact, more than a year’s time has been given to the petitioner but he has not submitted his caste certificate. We have considered the submission of learned counsel for the parties. Though we are not inclined to grant any relief to the petitioner, but considering the facts and circumstances of the case, we are permitting the petitioner to file caste certificate before the Uttarakhand Public Service Commission on or before 30.07.2014. In case petitioner fails to file caste certificate, it will be open for the Public Service Commission to cancel the candidature of the petitioner. The writ petition stands disposed of. Interim relief application also stands disposed of.” 5. Thereafter, petitioner would state that he is not able to get the aforesaid documents upto 30.07.2014 and petitioner filed Special Appeal No. 450 of 2014 to revoke the order dated 14.03.2014, which was passed in Writ Petition (M/S) No. 2351 of 2013; but, the same was dismissed by giving liberty to the petitioner to move review before the Single Judge. In the meantime, petitioner got one letter dated 16.09.2014. By the said order, petitioner was informed that the appointment of the petitioner has been cancelled, as he has not supplied the caste certificate as well as permanent resident certificate. Petitioner, thereafter, sought a review of the order in Writ Petition (M/S) No. 2351 of 2013, which was allowed with the direction to Tehsildar to make a fresh inquiry and make appropriate decision. This was done by order dated 16.12.2014. Thereafter, it is stated that the Tehsildar, half heartedly, rejected the representation by giving feeble reasons. The said order is produced as Annexure-9. This was done by order dated 16.12.2014. Thereafter, it is stated that the Tehsildar, half heartedly, rejected the representation by giving feeble reasons. The said order is produced as Annexure-9. Petitioner filed Writ Petition (M/S) No. 886 of 2015 against the order dated 13.02.2015 and the Court, after going through the merits of the case and seeing the urgency of the petitioner, directed the respondent no. 2 in the said petition to issue provisional caste certificate as well as permanent resident certificate. This order is dated 08.05.2017. The Tehsildar, complying with the aforesaid order issued caste certificate as well as permanent resident certificate on 29.05.2017. On the basis of the same, petitioner filed a representation before the Commission along with caste certificate and permanent resident certificate seeking that he may be appointed on the post of Homeopathic Medical Officer; but, the same has been rejected by giving reference to order passed in Writ Petition (S/B) No. 245 of 2014, which we have extracted. Accordingly, petitioner is before us seeking the reliefs as already noted. 6. We heard Mr. Siddharth Bisht, learned counsel appearing for the petitioner; Mr. B.D. Kandpal, learned counsel appearing for the Commission and also Mr. S.S. Chauhan, learned Deputy Advocate General for the State of Uttarakhand. 7. Mr. Siddhartha Bisht, learned counsel for the petitioner would submit that the petitioner belongs to the Backward Community. Petitioner is not at fault. Petitioner has filed several proceedings and having regard to the facts of the case, justice cannot be denied to a member of the Backward Community, which the petitioner is undoubtedly. He also sought to draw support from the judgment of the Hon’ble Apex Court in the matter of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and another, reported in (2016) 4 SCC 754 . 8. Mr. B.D. Kandpal, learned counsel for the Commission and also Mr. S.S. Chuhan, learned Deputy Advocate General would draw our attention to the order passed by the Division Bench of this Court in Writ Petition (S/B) No. 245 of 2014. It is pointed out that the Commission has acted on the basis of the same. Mr. B.D. Kandpal would point out that, acting on the same, the selection of the petitioner has been cancelled, which was made subject to the production of Caste Certificate, and in fact, another candidate has been recommended, namely, the fourth respondent in the writ petition. It is pointed out that the Commission has acted on the basis of the same. Mr. B.D. Kandpal would point out that, acting on the same, the selection of the petitioner has been cancelled, which was made subject to the production of Caste Certificate, and in fact, another candidate has been recommended, namely, the fourth respondent in the writ petition. This is a case, where not only the last date of taking the application has passed; but, also a final select list has been prepared by the Commission in the year 2014 and the caste certificate is produced only after the cancellation and after publication of the select list in the year 2017. 9. As far as the judgment of the Hon’ble Apex Court is concerned, we notice that, undoubtedly, the Hon’ble Apex Court was dealing with the case of selection by the Delhi Subordinate Services Selection Board; the post was of Staff Nurse under the advertisement; and the last date for submission of application form was 21.01.2008. The appellant, who belonged to the reserved category, submitted his application form before the last date and he was short listed for selection. His name did not appear in the final list and, then on inquiry, it was found that he was not selected to the post for the reason that he had failed to submit the OBC certificate. Aggrieved by the same, he filed a writ petition in the year 2009, which was allowed by the learned Single Judge following the judgment of the Delhi High Court in Pushpa v. Government of N.C.T. of Delhi reported in 2009 SCC OnLine Delhi 281. The Division Bench, however, distinguished the judgment of Pushpa in Appeal taking the view that the appellant before it applied for the certificate only ten days before the cut off date, which is not a case in Pushpa Devi. The Hon’ble Apex Court, however, set-aside the decision. We may, inter alia, noticed the following para: “14. The Division bench of the High Court erred in not considering the decision rendered in Pushpa. In that case, the learned Single Judge of the High Court had rightly held that the petitioners therein were entitled to submit the OBC certificate before the provisional selection list was published to claim the benefit of the reservation of OBC category. The Division bench of the High Court erred in not considering the decision rendered in Pushpa. In that case, the learned Single Judge of the High Court had rightly held that the petitioners therein were entitled to submit the OBC certificate before the provisional selection list was published to claim the benefit of the reservation of OBC category. The learned Single Judge correctly examined the entire situation not in a pedantic manner but in the backdrop of the objection of reservations made to the reserved categories, and keeping in view the law laid down by a Constitution Bench of this Court in Indra Sawhney v. Union of India as well as Valsamma Paul v. Cochin University. The learned Single Judge in Pushpa also considered another judgment of the Delhi High Court, in Tej Pal Singh, wherein the Delhi High Court had already taken the view that the candidature of those candidates who belonged to the SC and ST categories could not be rejected simply on account of the late submission of caste certificate. 10. Thereafter, the Hon’ble Apex Court also took note of the judgment of the Hon’ble Apex Court in Indira Sawhney v. Union of India (1992) Supp (3) SCC 217 and the Valsamma Paul v. Cochin University, (1996) 3 SCC 545 and, essentially, took the view that the reservation is made for the backward classes and the Court must bear in mind the purpose. In this regard, we may also refer to paragraph 16 of the said judgment, which reads as follows: “16. In Pushpa, relevant paragraphs from Tej Pal Singh have also been extracted, which read thus: “11…’15. The matter can be looked into from another angle also. As per the advertisement dated 11-6-1999 issued by the Board, vacancies are reserved for various categories including SC category. Thus in order to be considered for the post reserved for SC category, the requirement is that a person should belong to SC category. If a person is SC he is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. If a person is SC he is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to SC category and act thereon by giving the benefit to such candidate for his belonging to SC category. It is not that petitioners did not belong to SC category prior to 30-6-1998 or that acquired the status of being SC only on the date of issuance of the certificate. In view of this position, necessitating upon a certificate dated prior to 30-06-1998 would be clearly arbitrary and it has no rationale objective sought to be achieved. 16. While taking a particular view in such matters one has to keep in mind the objectives behind the post of SC and ST categories as per constitutional mandate prescribed in Articles 15(4) and 16(4) which are enabling provisions authorizing the Government to make special provisions for the persons of SC and ST categories. Articles 14(4) and 16(4), therefore, intend to remove social and economic inequality to make equal opportunities available in reality. Social and economic justice is a right enshrined for protection of society. The right in social and economic justice envisaged in the Preamble and elongated in the fundamental rights and directive principles of the Constitution, in particular Articles 14, 15, 16, 21, 38, 39 and 46 are to make the quality of the life of the poor, disadvantaged and disabled citizens of the society meaningful.” In fact, it is certainly true that if a person is a member of the reserved caste, he is so by birth and not by acquisition of the category because of any other event happening at a later stage; but, we would think that, in the facts of this case, we cannot overlook a few features. The select list was prepared in 2013. In fact, petitioner would say that petitioner appeared for interview on 19.08.2013. Time was given by the Commission itself to produce a certificate beyond the last date fixed under the advertisement till 22.07.2014. The select list was prepared in 2013. In fact, petitioner would say that petitioner appeared for interview on 19.08.2013. Time was given by the Commission itself to produce a certificate beyond the last date fixed under the advertisement till 22.07.2014. Still, the petitioner was not in a position to secure the certificates and petitioner approached this Court and the Division Bench of this Court gave time till 30.07.2014. What is more important is the Court, by its judgment, permitted the Commission to cancel the selection of the petitioner, if the petitioner did not produce the certificates by 30.07.2014, the time, which was given by the Division Bench. Secondly, acting on the basis of the same, the selection of the petitioner was cancelled by the Commission by order dated 16.09.2014. Therefore, the action of the Commission cannot be at all faulted. In fact, learned counsel for the Commission would also point out that the petitioner has not challenged the order canceling the candidature in the year 2014; but, he has only challenged it now in the year 2017. Thirdly, we have noticed the emergence of third party rights, as based on the cancellation of the selection of the petitioner, apparently, name of the fourth respondent was recommended by the Commission and the fourth respondent has already been appointed. Having regard to the facts present in this case, we may not be in a position to apply the judgment of the Hon’ble Apex Court in the matter of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and another, reported in (2016) 4 SCC 754 . No doubt, the petitioner will put blame at the doorstep of the revenue authorities in the delay but, that cannot lead the petitioner to point the finger of blame at the Commission, whose action in rejecting the representation or canceling the candidature, cannot be called in question in the circumstances of this case. 11. Accordingly the writ petition fails and is dismissed without any order as to costs.